What Is Considered Harassment In The Workplace?
The Alberta Human Rights Commission provides the following examples of harassment in the workplace,
- Verbal or physical abuse, threats, derogatory remarks, jokes, innuendo or taunts about appearance or beliefs.
- The display of pornographic, racist or offensive images.
- Practical jokes that result in awkwardness or embarrassment.
- Unwelcome invitations or requests, either indirect or explicit.
- Intimidation, leering or other objectionable gestures.
- Condescension or paternalism that undermines self-confidence.
- Unwanted physical contact such as touching, patting, pinching, punching and outright physical assault.
It is important to note that the Alberta Human Rights Act protects employees against harassment in and away from the workplace, if harassment is based on one of the “protected grounds” and the incidents occur in connection with their employment.
What Are The Protected Grounds Per The Alberta Human Rights Act?
“Protected grounds” per the Alberta Human Rights Act include,
- Religious beliefs,
- Gender identity,
- Gender expression,
- Physical disability,
- Mental disability,
- Place of origin,
- Marital status,
- Source of income,
- Family status, and
- Sexual orientation.
For instance, derogatory comments, taunts, threats, jokes, teasing or jeering about race, colour, national or ethnic origins, or about adornments and rituals associated with cultural or religious beliefs would be protected under the Alberta Human Rights Act because the harassment is based on a protected ground and thus discriminatory in nature.
Another common example of discrimination in the workplace includes instances where the employer terminates employment prior to the employee going on maternity leave, paternity leave, or a medical leave, or the employer will terminate the employee shortly after their return. It is important to note that a leave permitted under the Employment Standards Code RSA 2000 is a protected leave. As such, your employer must either reinstate you to your original position of employment or provide alternative work of a comparable nature upon your return.
It is important to note that you must make the complaint to the Human Rights Commission within one year of the alleged incident of discrimination.
For greater certainty, it is prudent to discuss your options with legal counsel as soon as you can following any incident of discrimination and or harassment.
What If The Workplace Harassment I Am Experiencing Does Not Fall Under The Alberta Human Rights Act?
If you are experiencing harassment and or bullying in the workplace but does not fall under being a protected ground per the Alberta Human Rights Act, you still have recourse under Occupational Health and Safety legislation. The Occupational Health and Safety Act SA 2017, c O-2.1, states that the employer must ensure that “none of the employer’s workers are subjected to or participate in harassment or violence at the work site”.
Harassment is defined as “any single incident or repeated incidents of objectionable or unwelcome conduct, comment, bullying or action by a person that the person knows or ought reasonably to know will or would cause offence or humiliation to a worker, or adversely affects the worker’s health and safety…”.
Often employees are hesitant to make a complaint to OH&S out of concern of retaliation from their employer. However, employees cannot be disciplined for exercising their right under Occupational Health and Safety laws. Should your employer retaliate against you for reporting an incident, and or incidents to OH&S, you have 6 months to proceed with a “disciplinary action complaint” to OH&S. Occupational Health and Safety, following an investigation, can then require an employer to,
- stop the disciplinary action,
- reinstate workers to their former employment under the same terms and conditions,
- pay the equivalent wages and benefits workers would have earned if the disciplinary action did not happen,
- remove reprimands or other references to the matter from employment records, and
- take any other action an OHS officer considers necessary to prevent a recurrence.
If you are dealing with harassment or bullying in the workplace, you can proceed with both a Human Rights complaint, if there is discrimination, and a complaint to OH&S.
Am I Entitled To Severance If I Am Subjected To Harassment And Or Discrimination In The Workplace?
It is an implied term of your employment contract/agreement that the employer will comply with Occupational Health and Safety legislation and Human Rights legislation. If you are being subjected to harassment, bullying, and or discrimination, the employer has possibly breached this implied term thereby providing grounds for a constructive dismissal claim. It is not necessary to pursue a constructive dismissal claim concurrently with a claim of harassment and or discrimination, but it is common as the relationship between the employee and employer has often become irreparable.
Protecting Your Corporation From Liability: Anti-Harassment Policies/Prevention Plans
As set out above an employer has an obligation to ensure that none of the employer’s workers are dealing with or participating in harassment or violence at the work site. OH&S states that every employer must develop and implement workplace harassment and violence prevention plans. The plans must include:
- a prevention policy and prevention procedures, and
- be in writing and readily available for reference by workers at the work site, either in paper or electronic formats
The Alberta Human Rights Commission states that
“Employers must create a safe and healthy workplace free from harassment. Harassment can take many forms, and some behaviours may seem innocent or not harmful. However, the law looks at the effect of the harassment on the person receiving it, not what the harasser intended.
Employers should promptly and seriously respond to all harassment incidents. This includes investigating concerns and taking appropriate action. Having and enforcing a harassment prevention policy shows an employer does not tolerate harassment. The policy should also set out a process for reporting and responding to harassment.
When the harassment is discrimination under the Act, an employee can make a human rights complaint against their employer for failing to maintain a safe workplace. An employer cannot retaliate against an employee who reports or makes a complaint to the Commission about harassment.”
Ultimately, an employer has an obligation to have policies and procedures in place to address any form of harassment, violence, and or discrimination, whether it falls under Human Rights legislation and or under OH&S legislation. The failure to have such policies in place increases the risk of liability should an employee proceed with a complaint to a regulatory body or commence legal proceedings against.
Getting Help From Alberta Employment Lawyers
If you are an employer, we at Kahane Law can review your current policies, or if you do not have any policies in place, we can draft policies and provide further training and educational seminars to ensure that you and your team understands and acts in accordance with legislation.
If you are an employee and you believe you were or are dealing with harassment or discrimination, we can review your matter and determine the best recourse for your particular situation.
You can contact us at our Calgary and Edmonton office. To make things easier, we offer in person, telephone and video consultations in Alberta. For the fastest service, please email our office with a brief outline of your situation. This allows us to provide you with feedback, information and / or the ability to set up a meeting with the appropriate lawyer.